Madhya Pradesh High Court
Dheeraj Kansana vs The State Of Madhya Pradesh on 19 November, 2014
1 M.Cr.C.9364/2014
Dheeraj Kansana
Vs.
State of M.P. and another
19.11.2014
Shri Rajmani Bansal, Advocate, for the petitioner.
Shri B.P.S. Chauhan, Panel Lawyer, for the
respondent No.1/State.
Shri Pratip Visoriya, Advocate, for the respondent No.2.
With the consent of the parties, the petition is finally disposed of at the motion stage.
Heard.
The petitioner is seeking to invoke the inherent powers of this Court under Section 482 of Cr.P.C to quash the FIR registered at Crime No.115/2014 at Police Station Saraichhola, district Morena, under Sections 420, 467, 468 and 471 of IPC as well as charge-sheet and other criminal proceedings related to the same FIR.
2. According to the petitioner, respondent No.2 Jagannath Singh filed a report which was not entertained by the concerned Police Station. Petitioner is the Secretary in Gram Panchayat, Piparai, Janpad Panchayat, Morena. According to respondent No.2, the 2 M.Cr.C.9364/2014 petitioner fabricated the signatures of respondent No.2 and withdrawn different amounts from the bank on different dates. On the basis of the complaint, the City Superintendent of Police wrote a letter to chief Executive Officer, Zila Panchayat, Morena, on 1.7.2014 (Annexure P/3) to make available the enquiry reports of the office as to the alleged withdrawal by forged cheques. In the enquiry jointly done by the Accounts Officer, District Panchayat, Morena, and the Manager, the Central Bank of India, reported that after due verification and after the signatures, were tallied with the signatures in the bank records, the amounts were disbursed. Therefore, the allegation that such forged cheques were encashed is not true and the complaint is liable to be filed. This report was sent to the Chief Executive Officer, Zila Panchayat, Morena, on 14.7.2014 (Annexure P/4). It is also averred that the Central Bank of India, the lead bank in which the account was maintained has also clarified by its letter dated 9.7.2014 that after due verification the cheques were honored. The Central M.P. Gramin Bank also replied on 9.7.2014 that the cheques were honored after due verification of the signatures. Similar letter was issued by State Bank of India, Saraichhola Branch on 10.07.2014. That being so, no criminal action was 3 M.Cr.C.9364/2014 taken against the petitioner by the department or the Police.
3. The respondent No.2 Jagannath Singh filed Writ Petition No.4998/14 (Jagannath Singh Vs. State of M.P. and Others) in which the petitioner was arrayed as respondent No.7. This Court in W.P. No. 4998/2014 on 25.08.2014 (Annexure P/6) ordered that, "This petition without commenting upon the merits of the matter and with consent of learned counsel for the rival parties stands disposed of with a direction to respondent No.2/Superintendent of Police, Gwalior and respondent no.6/ SHO, P.S. Saraichhola, District Morena to take suitable action in accordance with law under Section 154 of Cr.P.C. on the basis of the complaints made by the petitioner vide Annexures P-3 and P-6, if the same discloses commission of cognizable offence.
The above said action be taken by the Superintendent of Police, District Gwalior and SHO, P.S. Saraichhola, District Morena within a period of 30 days from the date of receipt of certified copy of this order alongwith additional copies of complaints vide Annexures P-3 and P-6.
It is needless to emphasis that while complying with this order the directions and exceptions contained in para 111 of the decision of the Supreme Court in Lalita 4 M.Cr.C.9364/2014 Kumar's case (supra) be kept in mind"
4. On the basis of this direction, the Police Station Saraichhola, District Morena, registered Crime No.115/14 on 21.09.2014 against the petitioner under Sections 420, 467, 468 and 471 of IPC (Annexure P/1).
5. In this background, the petitioner has filed the present application under Section 482 of Cr.P.C. for the reliefs has been stated above, on the ground that in the said order no such direction was issued by the Hon'ble Court for lodging FIR. But the Police Station Saraichhola was directed to take suitable action in accordance with law under Section 154 of Cr.P.C. if the same discloses commission of cognizable offence. As there was no enquiry, the lodging of FIR is erroneous. It is further claimed that the allegations made in the FIR or the complaint, even if they are taken at their face value and accepting to entirety do not prima facie constitute an offence or make out a case against the petitioner. Therefore, the law laid down in State of Haryana and Others Vs. Bajanlal reported in 1992 Supp.(1) SCC 335 is attracted. It is also contended that petitioner is a Government servant and without sanction for prosecution as required under Section 197 Cr.P.C., no 5 M.Cr.C.9364/2014 FIR can be registered against him. Hence, it is prayed that the FIR registered at Crime No.115/14 be quashed.
6. It is also contended at the bar by the learned counsel for the petitioner that the words in the FIR that the learned Court "ordered to register the crime" is completely erroneous because no such blanket order has been given by the Hon'ble High Court.
7. In the reply, counsel appearing for respondent No.2 submitted that enquiry is being undertaken as per the direction of the Court after enquiry if commission of any cognizable offence is disclosed then the Police will proceed with the case or else the Police have the option to file a F.I.R. But without any enquiry how the Police will come to the conclusion that any offence is made out or not. It is also strongly contended that there was no investigation earlier by the Police. Only a departmental enquiry was conducted and that enquiry is also a preliminary enquiry as regarding the commission of offence. But the departmental enquiry would have no bearance on the enquiry of the crime by Police. In this regard, reliance has been placed in State of N.C.T. of Delhi Vs. Ajay Kumar Tyagi, reported as 2012 CRI.L.J.4489, in which Hon'ble Apex Court held that:-
"Criminal Procedure Code, 1973, 6 M.Cr.C.9364/2014 Section 482 - Criminal proceedings -
Departmental proceedings - Quashing of criminal proceedings on the ground of exoneration in departmental proceedings -
Held that the exoneration in the departmental proceedings ipso facto would not result into the quashing of the criminal prosecution - However, if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed - But that principle will not apply in the case of departmental proceedings as the criminal trial and the departmental proceedings are held by two different entities - Further they are not in the same hierarchy - The order of the High Court quashing the criminal proceedings on the grounds that respondent has been exonerated in the departmental proceedings held unsustainable both on facts and law and liable to be set aside - Accused directed to appear before the trial Court within four weeks.
8. Contending that the FIR registered at Crime No. 115/2014 dated 21.9.2014 is liable to be quashed the learned counsel for the petitioner submits that the High Court in its revisionary power or inherent power can consider the defense of the petitioner in order to prevent 7 M.Cr.C.9364/2014 injustice or abuse of process or to promote the justice. The documents placed by the petitioner clearly shows that no case is made out against the petitioner in the preliminary inquiry. The cheques which were alleged to have been forged after verification by the Account Officer and the Bank found that the cheques are not forged.
9. In this regard, counsel for the petitioner relied on Harshendra Kumar D. Vs. Rebatilata Koley and others (2011) 3 SCC 351 in which it is held:
B. "Criminal Procedure Code, 1973, Ss. 482 and 397 - Quashing of proceedings under, by appreciating evidence - When permissible -
Consideration of defence of prima facie stage by High Court under revisionary power or under inherent powers is not absolutely barred - In order to prevent injustice or abuse of power or to promote justice, High Court may look into materials which have significant bearing on the matter at prima facie stage - High Court can quash complaint if materials relied upon by accused are beyond suspicion or doubt or which are in the nature of public documents and are controverted - In present case, High Court refused to interfere with 8 M.Cr.C.9364/2014 complaint (under revisionary power) and allowed trial against Director of company where offence was committed by Company after his resignation as Director - Held, if accusations cannot stand on the face of documents which are beyond suspicion or doubt, it would be travesty of justice if accused is relegated to trial and asked to prove his defence before trial court - Complaints against appellant quashed
- Corporate Laws - Corporate criminal liability - Quashment of proceedings - Documents that may be relied on in defence - Companies Act, 1956, S. 291
10. Further picking up the same thread, the learned counsel for the petitioner relied on Sathish Mehra Vs. State of N.C.T. Of Delhi and Anr. AIR 2013 SC 506, in which the powers of the High Court under Section 482 of Cr.P.C has been clearly defined. The Hon'ble Supreme Court has held:
"Criminal P.C. (2 of 1974), S. 482
-Quashing of criminal proceedings -
Power as to - Extra-ordinary in nature - Failure of allegations made to make out ofence - Core basis on which power is recognized as inherent in High Court -
Such power is exercisable at threshold as well as at advanced stage of trial.9 M.Cr.C.9364/2014
11. On the other hand, replying the arguments, learned counsel for the respondent No.2 Shri Pratip Visoria, has vehemently argued, that the document which has been relied upon by the petitioner are not the documents beyond suspicion or public documents. That being so, reliance cannot be placed on those documents at this stage, otherwise, also it is the prerogative of respondent No.2 to challenge these documents and the person who have executed these documents have to cross examined during the trial to test the veracity of these documents. It would be pre-mature to rely on these documents without the test of cross examination. The learned counsel placed reliance on Rajiv Thapar and others (2013) SCC (Cri) 158, in which it has been held:
"Criminal Procedure Code, 1973 -Sc. 482 and 227 - Stepwise enquiry devised for High Court to follow in exercising power of quashment under S. 482 - Quashment of proceedings - Defence material when may be relied on to quash proceedings.
-Held, High Court in exercise of its jurisdiction under s. 482 must make just and rightful choice- At this stage, neither truthfulness of allegation levelled by complainant can be evaluated, nor can weight of defence evidence be determined - Where allegations bring out all ingredients of 10 M.Cr.C.9364/2014 charge (s) levelled, and material placed before court prima facie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in allegations levelled - This is so because it would result in giving finality to the accusations levelled by the prosecution / complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.
Thus, held to invoke its inherent jurisdiction to quash proceedings on basis of defence material High Court has to be fully satisfied that material produced or relied on by accused (a) leads to conclusion that his/heir defence is based on sound, reasonable, and indubitable facts; 9b) rules out and displaces assertions contained in charges levelled against accused without necessity of recording any evidence; © should not have been refused, or alternatively, cannot be justifiably refused, being of sterling and impeccable quality I.e. a reasonable man should be persuaded to dismiss and condemn actual basis of accusations as false ; and (d) whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice.
On facts held, evidence produced by appellant - accused husband viz.11 M.Cr.C.9364/2014
postmortem report chemical analysis findings by Central Forensic Science Laboratory, inquest report, letter written by brother of deceased just four days before her death, jand telephone bills substantiating consistent and regular and amicable/ cordial contact between families of husband and deceased wife, were not refused or contested by respondent complainant (father of deceased wife) - Moreover, complainant himself was uncertain about manner in which his daughter had allegedly died ie whether by poisoning or strangulation- High Court in such circumstances, held , should have viewed matter keeping in mind likelihood of hurt caused to a father who had lost his daughter within one year of her marriage (due to heart disease) and ascertained whether complaint was actuated by malice and ulterior motive for wreaking vengeance - Besides, mother of deceased, despite repeated opportunities had failed to appear in inquest proceedings- High Court erred in not exercising its judicial conscience for invoking its inherent power and quashing proceedings - In fact High Court had quashed discharge order passed by Sessions Judge- Discharge order restored and proceedings quashed. Penal Code, 1860, Ss. 304-B and 498-A 12 M.Cr.C.9364/2014
12. Reliance has been placed in Dy Commissioner of Prohibition and Excise, Nizamabad Division Nizamabad, A.P. And another Vs. Balaji Cattle Feeds and Another (2004) SCC 274 and State of Madhya Pradesh Vs. Awadh Kishori Gupta and others (2004) 1 SCC 691. In both these cases quashing of proceedings under Section 482 of Cr.P.C by appreciating the evidence was held not permissible, because acceptability of material to fasten guilt on accused is matter of trial. Therefore, in the above cases the proceedings were revived.
13. The learned counsel for respondent No. 2 argued that the acceptability of which was essentially a matter to be looked into at the time of trial. Therefore, the same cannot be permitted to look into at this stage.
14. Having gone through the whole arguments placed before the Court, and on perusal of the records, this Court is of the opinion that the FIR against a public servant, preliminary inquiry should be made before registering the case but undue haste in registering the case by Police Authority by itself not sufficient to quash the FIR. This view is fortified in the judgment State of Haryana and others Vs. Bhajan Lal and others 1992 SCC (Cri) 426 13 M.Cr.C.9364/2014
15. This Court vide order dated 25.8.2014 passed in W.P. No. 4998/2014 has enumerated that no comments were made on the merits of the matter, respondent No.6, i.e SHO, Police Station, Saraiyechola District Morena was directed to take suitable action in accordance with law under Section 154 of Cr.P.C on the basis of of the complaints made by respondent No.2 Nagannath Singh. If the same discloses commission of cognizable offence. This Court further made it clear that "It is needless to emphasis that while complying with this order the directions and exceptions contained in para 11 of the decision of the Supreme Court in Lalita Kumari Vs. Government of U.P. & others reported in J.T 2013 (14) SC 399, it kept in mind.
16. The Hon'ble Supreme Court has given the following directions in para 111:-
"(vi) As to what type and in which cases preliminary inquiry is to be conduced will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputers family disputes.
14 M.Cr.C.9364/2014
(b) Commercial offences
© Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal
prospection, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days . The fact of such delay and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/ Daily Diary is the record of all information received in a police station, we direct that all information relating to 15 M.Cr.C.9364/2014 cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
17. The Hon'ble Supreme Court has directed to initiate preliminary inquiry in the categories of cases which include "cases of corruption". In the present case also there is a allegation of corruption where preliminary inquiry is necessary.
18. In view of the aforesaid circumstances, again without commenting anything on the merits of the report, it is ordered that a preliminary inquiry should be made within the stipulated period of seven days from the date of receipt of certified copy of this order and take suitable action.
19. The FIR at Crime No. 115/2014 dated 21.9.2014 registered at Police Station, Saraiyechola District Morena is hereby quashed and it is ordered that the SHO Police Station Saraiyechola District Morena shall conduct a preliminary inquiry not exceeding seven days and if matter containing in the report made by 16 M.Cr.C.9364/2014 respondent No.2, Jagnnath Singh discloses commission of cognizable offence, then suitable action in accordance with law under Section 154 of Cr.P.C be initiated.
20. Accordingly, this petition stand disposed of.
(S.K. Palo) JUDGE s.mani /dcs